ORDERS:
FINAL DECISION
In this matter petitioner challenges the respondent Department of Health and Environmental
Control, Office of Coastal Resource Management's ("OCRM") issuance of a dock permit to
respondent William Campbell. This permit, P/N # CC-92-256, authorizes respondent Campbell to
construct a private dock at 2910 Jasper Boulevard, pass Station 30, Sullivan's Island, Charleston
County, South Carolina.
FINDINGS OF FACT
1. Felger has a grant in a 130 acre marshland which entitles him to the exclusive right to plant and
harvest oysters therefrom. See Town of Sullivan's Island, et al. v. Milton Felger, __ S.C. __, 457
S.E.2d 626 (Ct. App. 1995); cert. denied, May 10, 1996 (Davis Adv. Sh. No. 12).
2. Campbell owns a platted lot on Sullivan's Island that is high ground, which lies above the mean
tide line. The dock which he was permitted to construct would extend over the marshland, to
which Felger holds the grant-interest, to a small tributary of Conch Creek. Both the marshland
and the tributary lie below the mean high tide. However, to reach the tributary the dock would
necessarily have to either pass over or originate on intervening high ground, which exists between
Campbell's lot and marshland to which Felger owns a grant-interest.
3. A legal question exists as to who owns the intervening high ground between Campbell's lot and
the marshland. It would appear that either the state or the town of Sullivan's Island owns this
property. The court in Town of Sullivan's Island, et al., implied that the state possessed
ownership of the intervening land. Id. at 26, n.3.
4. In his permit application, Campbell inaccurately indicated that there were only two adjoining
land owners, i.e., the lots on each side of his lot.
5. At the hearing of this matter, Campbell contended that the town of Sullivan's Island owned the
intervening property between his property and the marshland. He contended that he had already
received oral permission from the town of Sullivan's Island, the putative owner, to erect a dock on
this property. Campbell advised this tribunal that he could supply written documentation of the
same from the town.
6. As a result of Campbell's claim, this tribunal proceeded to hear this matter on the merits on the
condition that it would only adjudicate this case on the merits if Campbell supplied the proper
documentation of ownership of an easement in the high ground within 45 days of the date of the
hearing. Campbell was granted leave to request an additional 15 days, prior to the expiration of
the 45 day time period, in order to obtain said documentation.
7. The hearing was conducted on October 2, 1996 at the Charleston County Judicial Building. As
of the date this Order was filed, Campbell has not supplied documentation from the town
indicating possession of an easement to build a dock on the high ground between Campbell's lot
and the marshland.
8. DHEC assumes the position that the permit should be revoked if Campbell does not supply
proof of an easement to traverse the high ground.
9. Campbell's dock permit was improvidently and improperly issued by the Department, as
Campbell's application was not complete at the point of submission. Further, Campbell did not
render the application complete, after being given the opportunity to do so, through submission
of appropriate documentation.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant
to S.C. Code Ann. §§ 1-23-600, et seq. and 1-23-310 et seq. (Supp. 1995).
2. S.C. Code Ann. § 48-39-150 (Supp. 1995) authorizes the Administrative Law Judge Division
to hear contested cases arising under Chapter 39 of Title 48 of the 1976 Code.
3. South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal
Resource Management ("OCRM") is the division within DHEC charged with implementing the
state's coastal zone policies and issuing permits for the construction of docks, piers, and other
structures in coastal zone areas.
4. S.C. Code Ann. § 48-39-10, et seq. (Supp. 1995) grants OCRM jurisdiction over activities
such as those encompassed by the Campbell permit.
5. S.C. Code Ann. § 48-39-50 (Supp. 1995) provides the authority of DHEC to promulgate
regulations carrying out the provisions of Chapter 39 of Title 48 of the 1976 Code.
6. 23A S.C. Code Regs. 30-1 through 30-20 (Supp. 1995) were promulgated by the Coastal
Council, predecessor to OCRM, as the applicable regulations governing the management,
development, and protection of the coastal zone area of the state. These regulations became
effective July, 1993.
7. 23A S.C. Code Regs. 30-2(B) specifies what information shall be provided for a permit
application to be deemed complete. It must include, inter alia, "a certified copy of the deed,
lease, or the instrument under which the applicant claims title, possession or permission from the
owner of the property to carry out the proposal." 23A S.C. Code Regs. 30-2(B)(4) (Supp. 1995).
Campbell did not provide OCRM with sufficient documentation, as required by this section.
8. According to Regulation 30-12(A)(2)(o) (Supp. 1995), for a lot to be granted a dock permit,
the lot must have 75 feet of water frontage along the marsh edge and at least 75 feet of frontage
between extended waterfront property lines. Lots with less than the required frontage, but with at
least 50 feet of frontage, both on the marsh edge and along the water between the waterfront
extended property lines may be eligible for a common dock with the adjacent property.
9. Generally, the land between the high and low water marks where the tide ebbs and flows is held
by the state in public trust. However, it may be conveyed by grant of the General Assembly. See,
State v. Pac Guano Co., 22 S.C. 50 (1884); Heyward v. Farmers' Min. Co., 19 S.E. 963 (1894);
Chisolm v. Caines, 67 F. 285 (U.S.C.C. 1894); State v. Hardy, 259 S.C. 535, 193 S.E.2d 497
(1972); State v. Fain, 273 S.C. 748, 259 S.E.2d 606 (1979). However, owners of property
touching submerged tidelands acquire certain limited rights in the tidelands themselves (assuming
the tidelands are not already owned) usually referred to as riparian or littoral rights. The most
important riparian rights are the right to accretion, namely the ownership of land that emerges
along the shore if there is a build up through accretion, and the right to dockage, or to have
access to navigable water across the tideland by means of a pier. See 65 C.J.S. Navigable Waters
§§ 61-87 at 210-273 (1966). In general, riparian rights are possessed by those owning land down
to the high water mark. 65 C.J.S. Navigable Waters § 63 at 217 (1966). Riparian rights are not
owned by one who does not own land contiguous to the water. Id. In the instant case, Campbell
is not a riparian property owner, as he does not own the land contiguous to the water, nor has he
received permission from the owner of such property to construct a dock.
ORDER
The Campbell application for the dock permit is incomplete, as there is a dispute concerning
ownership of the high ground between Campbell's lot and the marshland. For the foregoing
reasons, OCRM improvidently and improperly issued Permit, P/N # CC-92-256 to Campbell.
Without reaching the merits of the issuance of the permit, this tribunal orders OCRM to revoke
the permit as improvidently and improperly issued and contrary to applicable regulations. The
revocation of Campbell's permit does not preclude him from resubmitting the application to
OCRM.
AND IT IS SO ORDERED.
________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, South Carolina 29211-1667
December ___, 1996
Columbia, South Carolina |
